Citation Nr: 0936109
Decision Date: 09/24/09 Archive Date: 10/02/09
DOCKET NO. 05-27 455 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to a rating in excess of 50 percent for
posttraumatic stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
A. M. Clark, Associate Counsel
INTRODUCTION
The Veteran served on active duty from March 1967 to November
1977, and from November 1990 to June 1991.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from a rating decision of the Department of
Veterans Affairs (VA), Regional Office (RO) in Montgomery,
Alabama.
He testified before a Decision Review Officer (DRO) in
October 2007. A transcript of the hearing is of record.
FINDING OF FACT
The Veteran's PTSD was manifested by no more than reduced
reliability and productivity with "difficulty" in
establishing and maintaining effective work and social
relationships.
CONCLUSION OF LAW
The criteria for a rating in excess of 50 percent for PTSD
have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A,
5107(b) (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159
(as amended), 3.321, 4.21, 4.126, 4.130, Diagnostic Code (DC)
9411 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Generally, the degrees of disability
specified are considered adequate to compensate for
considerable loss of working time from exacerbations or
illnesses proportionate to the severity of the several grades
of disability. 38 C.F.R. § 4.1. Separate diagnostic codes
identify the various disabilities. 38 U.S.C.A. § 1155; 38
C.F.R. Part 4.
However, the Board has been directed to consider only those
factors contained wholly in the rating criteria. See Massey
v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v.
Principi, 16 Vet. App. 436 (2002) (finding it appropriate to
consider factors outside the specific rating criteria in
determining level of occupational and social impairment).
Where there is a question as to which of two separate
evaluations shall be applied, the higher evaluation will be
assigned if the disability more closely approximates the
criteria required for that particular rating. Otherwise, the
lower rating will be assigned. 38 C.F.R. § 4.7. When, after
careful consideration of all procurable and assembled data, a
reasonable doubt arises regarding the degree of disability,
such doubt will be resolved in favor of the Veteran. 38
C.F.R. § 4.3 (2008).
The Board has reviewed all of the evidence in the Veteran's
claims file, with an emphasis on the medical evidence for the
rating period on appeal. Although the Board has an
obligation to provide reasons and bases supporting this
decision, there is no need to discuss, in detail, the
extensive evidence of record. Indeed, the Federal Circuit
has held that the Board must review the entire record, but
does not have to discuss each piece of evidence. Gonzales v.
West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore,
the Board will summarize the relevant evidence where
appropriate, and the Board's analysis below will focus
specifically on what the evidence shows, or fails to show, as
to the claim.
As is the case here, where entitlement to compensation has
already been established and an increase in the disability
rating is at issue, it is the present level of disability
that is of primary concern. See Francisco v. Brown, 7 Vet.
App. 55, 58 (1994). Nevertheless, where the evidence
contains factual findings that show a change in the severity
of symptoms during the course of the rating period on appeal,
assignment of staged ratings would be permissible. Hart v.
Mansfield, 21 Vet. App. 505 (2007).
Since the Veteran's most recent November 2004 increased
rating claim, he has been assigned a 50 percent evaluation
for PTSD pursuant to DC 9411. In order to be assigned the
next-higher 70 percent rating, the evidence must show
occupational and social impairment, with deficiencies in most
areas, such as work, school, family relations, judgment,
thinking, or mood, due to such symptoms as: suicidal
ideation; obsessional rituals which interfere with routine
activities; speech intermittently illogical, obscure, or
irrelevant; near-continuous panic or depression affecting the
ability to function independently, appropriately and
effectively; impaired impulse control (such as unprovoked
irritability with periods of violence); spatial
disorientation; neglect of personal appearance and hygiene;
difficulty in adapting to stressful circumstances (including
work or a worklike setting); inability to establish and
maintain effective relationships. 38 C.F.R. § 4.130, DC 9411.
The Board has reviewed the evidence of record and finds that
the evidence does not support a higher rating. First,
although the Veteran testified at his October 2007 DRO
hearing that he had had thoughts of committing suicide, he
indicated that he had never gone through with any of them.
He further stated that he had never told his doctors of these
feelings because he did not want to be hospitalized. A
November 2004 VA outpatient treatment note indicated that he
had had some thoughts of hurting himself however, they passed
quickly.
Although the Veteran reported, at his February 2005 VA
examination, that at times he felt that his life was
pointless, the VA examiner noted no active suicidal ideation.
The Veteran denied suicidal ideation at December 2004, April
2005, September 2005, November 2005, August 2006, April 2007,
and September 2007 VA outpatient treatment visits.
Therefore, the weight of evidence does not support a finding
of suicidal ideation.
Next, the evidence of record additionally does not note that
the Veteran experiences obsessional rituals. Further, the
evidence does not show that his speech has been
intermittently illogic, obscure, or irrelevant. Although it
was noted at December 2004, April 2005, September 2005, and
August 2006 VA outpatient treatment visits that his speech
had decreased rate and volume, an April 2005 VA outpatient
treatment note indicated that his speech was coherent and
relevant.
Further, his thoughts were described as relevant and coherent
at his February 2005 VA examination. Additionally, his
thought process was described as linear and goal-directed at
a September 2007 VA outpatient treatment visit. Therefore,
the evidence does not support a 70 percent rating.
Next, the objective evidence of record also fails to
demonstrate near-continuous panic attacks or depression which
affects his ability to function independently. While the
evidence shows significant anxiety and depression, the weight
of evidence does not support a determination that they affect
his ability to function independently. In fact, the February
2005 VA examination report noted that he could complete his
activities of daily living without any problems. He further
reported that he had walked 3-4 miles to his examination
because no one could bring him. At an April 2005 VA
outpatient treatment visit, he reported care giving
responsibilities, with respect to his mother and sister.
This evidence does not support a rating in excess of 50
percent.
Further, even though the evidence of record additionally
discussed his problems relating to others, social isolation,
and irritability, he does not appear to have impaired impulse
control consisting of unprovoked irritability with periods of
violence. For example, although the February 2005 VA
examination report noted that he had 3-4 weekly angry
outbursts, lasting about 2-3 hours which were often
stimulated by news of the Iraq War, his insight was described
as "good" and his judgment as "fair." Furthermore, it
does not appear that his outbursts were "unprovoked" in
nature.
Additionally, while he testified at his October 2007 DRO
hearing that he had been physically and verbally abusive
towards his ex-wife and relatives in the past, he did not
indicate when these episodes had occurred. The Board notes
that April 2005, September 2005, August 2006 VA outpatient
treatment reports described his insight and judgment as fair.
A July 2005 VA group therapy note indicated that the Veteran
seemed to be improving, by achieving his goals of reducing
the frequency of anger outbursts towards family and friends.
Thus, while irritability and outbursts have been described,
the balance of the evidence is not sufficient to warrant a
higher rating.
The evidence of record also does not demonstrate any spatial
disorientation. Rather, various VA outpatient treatment
records and the February 2005 VA examination report,
consistently noted that his orientation was within normal
limits. Given that spatial disorientation has not been
demonstrated, a higher rating is not warranted.
With respect to his personal appearance and hygiene, the
Board has considered statements from his niece and
stepdaughter indicating that his hygiene had suffered as a
result from his PTSD. However, the Board notes that an April
2005 VA outpatient treatment report reflected that he was
neatly groomed and a September 2007 VA outpatient treatment
note indicated he was well groomed and dressed. The February
2005 VA examiner commented that the Veteran was reasonably
well groomed.
Next, the evidence of record reveals that he clearly has
difficulty in maintaining effective relationships. For
example, he stated at his February 2005 VA examination that
he had stable and active relationships with his mother and
brother, but otherwise, he was essentially isolated.
Statements from friends and family additionally alluded to
the Veteran having difficulty with relationships. He also
testified at his October 2007 DRO hearing that he did not
like to be around crowds of people. He additionally
indicated that he had been married, but was now divorced. He
stated that his PTSD was the reason he was no longer married.
The Board notes that a VA Form 21-686c, Declaration of Status
of Dependent, submitted in January 2008, indicates that he
subsequently married again in December 2007. Moreover,
November 2004, April 2005, August 2005, October 2005 and
December 2005 VA group therapy treatment notes indicate that
he seemed to be improving by achieving his goal of reducing
isolation. These findings are consistent with a 50 percent
rating ("difficulty" in establishing and maintaining
effective relationships) but not a 70 percent rating (an
"inability" to establish and maintain effective
relationships).
In concluding that a disability rating in excess of 50
percent is not warranted here, the Board has also considered
the Veteran's Global Assessment of Functioning (GAF) score
assigned in his various VA outpatient treatment records and
at his February 2005 VA examination. GAF is a scale
reflecting the psychological, social, and occupational
functioning on a hypothetical continuum of mental health
illness. See Carpenter v. Brown, 8 Vet. App. 240, 242
(1995); see also Richard v. Brown, 9 Vet. App. 266, 267
(1996) (citing Diagnostic and Statistical Manual of Mental
Disorders (4th ed. 1994) (DSM IV)).
Here, the February 2005 VA examination revealed a GAF score
of 55. VA outpatient treatment records revealed the
following scores: December 2004 (GAF 55), April 2005 (GAF
53), September 2005 (GAF 53), and August 2006 (GAF 53).
Therefore, the GAF scores referable to the Veteran's PTSD
range essentially from 53 to 55. In this regard, scores
ranging from 51 to 60 reflect more moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic
attacks) or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers
or co- workers).
Based on the above GAF scores, an evaluation in excess of 50
percent is not warranted for any portion of the rating period
on appeal. The Board finds that the GAF scores are
consistent with the rating already in effect. In reaching
this conclusion, the benefit of the doubt doctrine has been
applied where appropriate.
With respect to the Veteran's claim, the Board has also
considered his statements and testimony, and the statements
of his friends and family that his disability is worse. In
rendering a decision on appeal, the Board must analyze the
credibility and probative value of the evidence, account for
the evidence which it finds to be persuasive or unpersuasive,
and provide the reasons for its rejection of any material
evidence favorable to the claimant. See Gabrielson v. Brown,
7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet.
App. 49, 57 (1990).
Competency of evidence differs from weight and credibility.
The former is a legal concept determining whether testimony
may be heard and considered by the trier of fact, while the
latter is a factual determination going to the probative
value of the evidence to be made after the evidence has been
admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno
v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v.
Derwinski, 2 Vet. App. 24, 25 (1991) (noting that "although
interest may affect the credibility of testimony, it does not
affect competency to testify").
In this case, the Veteran and his friends and family are
competent to report symptoms because this requires only
personal knowledge as it comes to them through their senses.
Layno, 6 Vet. App. at 470. They are not, however, competent
to identify a specific level of disability of this disorder-
according to the appropriate diagnostic codes. See Robinson
v. Shinseki, 557 F.3d 1355 (2009).
Such competent evidence-concerning the nature and extent of
the Veteran's PTSD-has been provided by the medical
personnel who have examined him during the current appeal and
who have rendered pertinent opinions in conjunction with the
evaluations. The medical findings (as provided in the
examination reports) directly address the criteria under
which this disability is evaluated.
As such, the Board finds these records to be more probative
than the subjective evidence of complaints of increased
symptomatology provided by the Veteran, his friends, and
family. See Cartright v. Derwinski, 2 Vet. App. 24, 25
(1991) (interest in the outcome of a proceeding may affect
the credibility of testimony). In sum, after a careful
review of the evidence of record, the Board finds that the
benefit of the doubt rule is not applicable and the appeal is
denied.
The Board has further considered whether referral under the
provisions of 38 C.F.R. § 3.321(b)(1) is warranted. However,
the weight of evidence does not reflect that the disability
at issue caused marked interference with employment (i.e.,
beyond that already contemplated in the assigned evaluation),
or necessitated any frequent periods of hospitalization, such
that application of the regular schedular standards is
rendered impracticable.
The Board acknowledges that the Veteran testified at his
October 2007 DRO hearing that he stopped working in 1992
because of his PTSD. The Board finds however, that his
symptoms have been adequately considered by the schedular
rating. Specifically, the scheduler rating criteria for PTSD
adequately considers the Veteran's occupational and social
functioning. As this decision outlines above, his PTSD was
manifested by no more than reduced reliability and
productivity with "difficulty" in establishing and
maintaining effective work and social relationships.
Moreover, the medical records during the rating period on
appeal do not indicate that his disorder has necessitated
frequent periods of hospitalization. Hence, referral for
consideration of an extra-schedular evaluation is not
warranted for any portion of the appeal period.
Finally, as provided for by the Veterans Claims Assistance
Act of 2000 (VCAA), VA has a duty to notify and assist
claimants in substantiating a claim for VA benefits.
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002
& Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (as
amended), 3.326(a) (2008).
Proper notice from VA must inform the claimant of any
information and medical or lay evidence not of record (1)
that is necessary to substantiate the claim; (2) that VA will
seek to provide; and (3) that the claimant is expected to
provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002).
This notice must be provided prior to an initial unfavorable
decision on a claim by the RO. Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet.
App. 112 (2004).
When VCAA notice is delinquent or erroneous, the "rule of
prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2).
In the event that a VA notice error occurs regarding the
information or evidence necessary to substantiate a claim, VA
bears the burden to show that the error was harmless.
However, the appellant bears the burden of showing harm when
not notified whether the necessary information or evidence is
expected to be obtained by VA or provided by the appellant.
See Shinseki v. Sanders, 556 U.S. ___ (2009).
In addition, the notice requirements of the VCAA apply to all
five elements of a service-connection claim, including: (1)
veteran status; (2) existence of a disability; (3) a
connection between the Veteran's service and the disability;
(4) degree of disability; and (5) effective date of the
disability. See Dingess/Hartman v. Nicholson, 19 Vet. App.
473 (2006). Further, this notice must include information
that a disability rating and an effective date for the award
of benefits will be assigned if service connection is
awarded. Id. at 486.
Here, the VCAA duty to notify was satisfied by way of a
letter sent to the Veteran in January 2005 that fully
addressed all notice elements and was sent prior to the RO
decision in this matter. The letter informed him of what
evidence was required to substantiate his increased rating
claim and of his and VA's respective duties for obtaining
evidence. Under these circumstances, the Board finds that
the notification requirements of the VCAA have been satisfied
as to both timing and content.
For an increased-compensation claim, section 5103(a)
requires, at a minimum, that VA notify the claimant that, to
substantiate a claim, the claimant must provide, or ask VA to
obtain, medical or lay evidence demonstrating a worsening or
increase in severity of the disability and the effect that
worsening has on the claimant's employment and daily life.
Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if
the Diagnostic Code under which the claimant's disability is
rated contains criteria necessary for entitlement to a higher
disability rating that would not be satisfied by the claimant
demonstrating a noticeable worsening or increase in severity
of the disability and the effect that worsening has on the
claimant's employment and daily life (such as a specific
measurement or test result), VA must provide at least general
notice of that requirement to the claimant. Additionally,
the claimant must be notified that, should an increase in
disability be found, a disability rating will be determined
by applying relevant Diagnostic Codes, which typically
provide for a range in severity of a particular disability
from noncompensable to as much as 100 percent (depending on
the disability involved), based on the nature of the symptoms
of the condition for which disability compensation is being
sought, their severity and duration, and their impact upon
employment and daily life. As with proper notice for an
initial disability rating and consistent with the statutory
and regulatory history, the notice must also provide examples
of the types of medical and lay evidence that the claimant
may submit (or ask the Secretary to obtain) that are relevant
to establishing entitlement to increased compensation - e.g.,
competent lay statements describing symptoms, medical and
hospitalization records, medical statements, employer
statements, job application rejections, and any other
evidence showing an increase in the disability or exceptional
circumstances relating to the disability.
The RO sent the Veteran a Vazquez letter in connection with
his claim in December 2008. Thereafter, the RO
readjudicated the PTSD claim in the January 2009 and April
2009 Supplemental Statements of the Case. See Prickett v.
Nicholson, 20 Vet. App. 370, 376 (2006) (noting that the
issuance of a fully compliant VCAA notification followed by
readjudication of the claim, such as a Statement of the Case
or Supplemental Statement of the Case, is sufficient to cure
a timing defect).
Notwithstanding the foregoing, it is noted that, on September
4, 2009, the Federal Circuit vacated and remanded Vazquez-
Flores v. Peake, 22 Vet. App. 37 (2008), and Schultz v.
Peake, No. 03-1235, 2008 WL 2129773, at 5 (Vet. App. Mar. 7,
2008). Specifically, the Federal Circuit concluded that
"the notice described in 38 U.S.C. § 5103(a) need not be
Veteran specific." In addition, the Federal Circuit
determined that "while a Veteran's 'daily life' evidence
might in some cases lead to evidence of impairment in earning
capacity, the statutory scheme does not require such evidence
for proper claim adjudication." Thus, the Federal Circuit
held, "insofar as the notice described by the Veterans Court
in Vazquez-Flores requires the VA to notify a Veteran of
alternative diagnostic codes or potential 'daily life'
evidence, we vacate the judgments.
Therefore, adequate notice was provided to the Veteran prior
to the transfer and certification of his case to the Board
and complied with the requirements of 38 U.S.C.A. § 5103(a)
and 38 C.F.R. § 3.159(b).
Next, VA has a duty to assist a veteran in the development of
the claim. This duty includes assisting him or her in the
procurement of service treatment records and other pertinent
records, and providing an examination when necessary. See
38 U.S.C.A. § 5103A (West 2002 & Supp. 2009); 38 C.F.R.
§ 3.159 (2008).
After a careful review of the file, the Board finds that all
necessary development has been accomplished, and therefore
appellate review may proceed without prejudice to the
Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993).
First, the RO has obtained VA outpatient treatment records.
Further, he was provided an opportunity to set forth his
contentions during the DRO hearing in October 2007.
Next, a specific VA medical examination pertinent to the
issue on appeal was obtained in February 2005. Neither the
Veteran, nor his representative has alleged that the
Veteran's current condition has worsened since the last VA
examination. Therefore, the available records and medical
evidence have been obtained in order to make an adequate
determination as to this claim.
Significantly, neither the Veteran nor his representative has
identified, and the record does not otherwise indicate, any
additional existing evidence that is necessary for a fair
adjudication of the claim that has not been obtained. Hence,
no further notice or assistance is required to fulfill VA's
duty to assist in the development of the claim. Smith v.
Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed.
Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001);
see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).
ORDER
A rating in excess of 50 percent for PTSD is denied.
____________________________________________
LANA K. JENG
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs